July 2014

Minnesota’s Arson Immunity Law: What is Covered? By Kerry A. Trapp, Attorney at Law

What’s Inside this Newsletter

Whitemore Fire Consultants, Inc. 952-461-7000 (Office)

952-461-7100 (fax)

www.whitemorefire.com

Minnesota’s Arson Immunity Law: What Is Covered? Page 1-3

By Kerry A. Trapp, Attorney at Law

Whitemore Fire Consultant’s Inc. Leadership Scholarships Page 3

Message from Robert Whitemore Page 3

News About Us—WFC Scholarship Recipients Page 4

Recalls Page 5-7

Stacy Kabele

Brad Ayers

In an effort to curb arson crimes and related damage, all states provide some type of immunity from liability for information supplied in connection with arson investigations. This issue arises most frequently in the context of authorities requesting an insurer’s investigation file or insurance policy information in connec-tion with potential criminal prosecution or the reverse, where an insurer is requesting information from a state agency in connection with a coverage investigation. Without an immunity law, the subject of the investigations could have claims against a sharing party

or its agent for slander, defamation, invasion of privacy, negligence, etc. The laws in place in most states,

including Minnesota, facilitate the sharing of arson investigation information by making those persons cov-

ered by the statutes “immune” from liability for such claims.

The specific types of immunity provisions found throughout the country fall into four categories. The first category extends immunity to insurers and their representatives exclusively1. The second category grants immunity to insurers and authorized state and local agencies2. The third category applies to insurers and their representatives unless fraud, malice, lack of good faith or criminal conduct is shown3.

Kerry A. Trapp

The fourth category, which is how Minne-sota’s statute operates, represents a com-bination of the first three by granting im-munity to insurers and authorized agen-cies, unless fraud, malice, lack of good faith or criminal conduct is shown4. Sections 299F.052 to 299F.057 of the Minnesota Statutes are known as the Minnesota Arson Reporting Immunity Law. The statute defines “authorized person” as the state fire marshal charged with investigation of the fire, superinten-dent of the BCA, prosecuting attorney in the county of the fire, sheriff or chief of police in the county of the fire, the county attorney responsible for prosecution, the FBI or any other federal agency, the U.S. Attorney’s Office, the chief of the arson squad or fire department responsible for the investigation of the fire or the com-missioner of commerce.5

Pursuant to the statute, any “authorized person” can require that an insurance company release all relevant information relating to a fire loss. This could include the insurance policy, appli-cation for insurance, policy premium pay-ment records, history of claims, and any materials relating to the investigation of the loss such as statements of any per-son, proof of loss and any other evidence relevant to the investigation6.

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1AL, FL, HI, UT, WV 2IN, MA, NE, NM, ND, RI, SC, SD 3AK, AR, DC, GA, KY, LA, MD, MI, MS, MO, MT, NJ, NY, OH, NC, TX, VT 4AZ, CA, CO, CT, DE, ID, IL, IA, KS, ME, MN, NV, NH, OK, OR, PA, TN, VA, WA, WI 5See Minn. Stat. §299F.053 6See Minn. Stat. §299F.054 Subd.1

require such notice. Minnesota’s law expressly states that “if an insurance company has reason to believe that a fire loss…may be of other than acci-dental cause, the company shall, in writing, notify an authorized person and provide the person with all rele-vant material…developed from the company’s inquiry…”12 If the company notifies any one of the authorized persons of a fire loss, that is considered sufficient no-tice13. An insurance company’s failure to release requested information or to notify an authorized agency of sus-pected arson could carry significant consequences. Pursuant to the stat-ute, any intentional refusal to provide the information or required notice is a violation and considered a misde-meanor.

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7Minn. Stat. §299F.054 Subd.3a.

8Id.

9Id. at Subs. 1 and 3a.

10Minn. Stat. §299F.055

11Minn. Stat. §299F.054 Subd.3 12

Minn. Stat. §299F.054 Subd.2(a) 13

Minn. Stat. §299F.054 Subd.2(b)

* * * * * *

Kerry A. Trapp, is an attorney with the law firm of Morrison Sund, PLLC, 5125 County Road 101, Suite 200, Minnetonka, Minne-sota. For more information pertaining to this submitted article, please visit their website at: www.morrisonsund.com or contact Ms. Trapp directly.

Minnesota’s Arson Immunity Law: What is Covered? (Continued from Page 1)

Inside Fire Page 2

In Minnesota, any insurance com-pany providing information to an “authorized person” may similarly re-quest in writing any relevant information from the “authorized person” 7. This re-quest is to be granted within 30 days but will not include any nonconviction crimi-nal history, identities of confidential in-formants or anything detrimental to an-other ongoing criminal investigation8. Requests for Information Required in Writing Each state’s arson reporting and immunity laws indicate the general form by which authorized agencies may statu-torily request relevant information from insurers to help facilitate their fire loss and arson investigations. The majority of states, including Minnesota, require these requests be made in writing9. Confidentiality Requirements In most states, including Minneso-ta, authorized agencies are required to maintain the confidentiality of all policy-related information they request and re-ceive from insurers10. Minnesota does, however, provide an allowance that the information may be shared with other authorized agencies in furtherance of offi-cial purposes11.

Insurer Notification Requirements Keep in mind that in nearly every state’s arson reporting and immunity laws there is a requirement that insurers notify authorized agencies anytime they sus-pect arson may have played a part in an insured property loss. Notably, Wisconsin is one of only three states that do not

While the law is rarely litigated, a recent unpublished Minnesota Court of Appeals case decided in March 2014, ad-dressed disclosures under the Arson Im-munity Act, Minn. Stat. 299F.05414. In the case, Hanson v. Bahma, a homeowner sued a fire investigator for breach of con-tract and negligence resulting from the investigator’s disclosure to the state fire marshal15. The investigator had been hired by the homeowner for the sole pur-pose of examining the scene and taking photographs16. After leaving the home, the investigator contacted the state fire marshal and opined that the fire was the result of arson17.

The investigator moved for sum-mary judgment, alleging he was immune from civil liability under the Arson Im-munity Act18. The trial court agreed, and

Each state law contains some minor variations and a thorough review of the relevant statute is recommended when faced with a potential arson sce-nario. A helpful summary of all state statute references in table format may be found at www.arsoncontrol.org/legal/table.htm

14Hanson v. Bahma, A13-1447, 2014 WL 997031 (Minn. Ct. App. Mar. 17, 2014), review denied (May 28, 2014) 15Id. 16Id. 17Id. 18Id. 19Id. at *2. 20Id. 21Id. 22Id. 23Id.

Minnesota’s Arson Immunity Law: What is Covered? (Continued from Page 2)

Inside Fire Page 3

the Court of Appeals affirmed, reasoning that “Minnesota law provides immunity from civil liability for any ‘person, who, acting in good faith, reports to an author-ized person information … that is or may-be relevant to the investigation of a fire….’”19 The homeowner argued that the investigator’s disclosure was not made in good faith but the court said this involves a “subjective test.” 20 The relevant ques-tion is whether the reporter (investigator) honestly believed he had a duty to re-port.21

“A reporter acting in good faith will be immune even if [he] is negligent or exercises bad judgment.” 22The court found that based on the record, it could not find that the report was made in bad faith and therefore the disclosure was immune from liability.23

Welcome to the latest edition of Inside Fire. It seems like I just wrote a short note in our last edition a few weeks ago . . . .you know what they say about time flying by! Wow, we’ve already enjoyed the Fourth of July. There have been a few changes at our company over the past few weeks. Jodi Davis, our Administrative Assistant/Receptionist , resigned and moved to Fort Meyers, Florida with her family the end of June. Jodi’s son, Jaimie, was admitted to a prestigious college preparatory school in Fort Meyers starting in August. This is a bittersweet time for us, as we are happy for the opportunities that Jodi’s son has before him, we are also sad-dened to see Jodi go. She was always a happy and helpful person and loved working with our clients for the past seven years. Congratulations to Jodi and her family as they embark on this new adventure. We also have a new addition to our staff . . . Lewey! Amy Powell, our Business Manager, adopted Lewey, a 9-week old Golden Retriever, who is now reporting to work daily protecting the staff and office. You will have to watch for his updates and adventures in future editions. Whenever you have the opportunity to stop by our office, he will be the short 4-legged blonde greeting you at the door. Doggie treats are always welcome. Lewey does have a habit of sleeping on the job, but we are working on his work productivity. Welcome Lewey, the new mascot at Whitemore Fire Consultants!!!!! Also, a special thank you to Kerry Trapp of Morrison Sund for providing the article pertaining to Arson Immunity. Many of us deal with the affects of the Arson Immunity Act each day as we investigate fires. It is important that all of us understand the ramifications and requirements of the law. Kerry provided insight and case law on this subject to assist us as we navigate through the investigation process.

Comings & Goings— A Message From Robert Whitemore

Jodi Davis

Lewey

Inside Fire Page 4

News About Us—

Whitemore Fire Consultants, Inc. Award Lead By Example Scholarships

Congratulations to our four 2014 Lead by Example Scholarship recipients. This year, marks the 14th year that Whitemore Fire Consultants, Inc. presents scholarships to out-standing seniors who epitomizes the characteristics of being a “true leader.” General H. Norman Schwarzkopf, U.S. Army, Retired who led the American forces in Operation De-sert Storm once said, “Peers select their leaders based on the character of those leaders. People want to be led by someone special.” Without question, all of these students demonstrated the values and characteristics referred to by General Schwarzkopf as someone that is “truly special” and someone who leads by example in their daily lives. Brett Dawson, is son of Connie (and the late Mark) Dawson of Prior Lake. Brett plans to attend Crown College next year and major in Business Management. Kara Lattery, is the daughter of Meg (and the late Gary) Lattery of Savage, Minnesota. Kara holds a special spot in all of our hearts as her dad, Gary, was an adjuster with Federated Insurance and a colleague of Whitemore Fire Consultants. Kara will be attend-ing South Dakota State University this fall and will be playing softball for the Jackrabbits. Hannah Painter, is the daughter Steve and Jean Painter of Savage. Minnesota. She will be attending the University of Minnesota—Twin Cities campus. Hannah will be entering the U of M as a “Super Sophomore” after having completed two years of PSEO studies at Normandale Community College while still attending high school. Joseph Sopczyk is the son of Thomas and Candace Sopczyk of Prior Lake, Minnesota. Joseph will be attending Iowa State University with a focus on Chemical Engineering and is a three time board scholar recipient. Congratulations to all of our scholarship winners.

Brett Dawson

Hannah Painter Kara Lattery

Joseph Sopczyk

Inside Fire Page 5

Ford Issues Six New Recalls for 101,000 Vehicles

Ford is recalling 100,610 ve-hicles in North America for various safety defects. The company re-ported no injuries, accidents or fires to any of the defects have been reported. The largest recall of 92,022 vehicles affects the 2013-2014 Ford Taurus, Lincoln MKS and Police Interceptor sedans; 2013-2014 Ford Flex and Lincoln MKT crossovers; 2012-2014 Edge crossover and 2014 Lincoln MKX crossover. Ford says the right-hand half shaft, which is part of the axle, isn’t properly seat-ed and may disengage over time, making the vehicle inoperable. The

vehicles are also at risk for rolling unexpectedly if they are parked without the parking brake on . Ford will notify owners of the vehicles in the half shaft recall by mail beginning the week of August 25. In all of the cases, dealers will repair the vehicles for free. Ford is also recalling:

5,264 2011-2014 commercial stripped chassis. The company says corrosion in the electrical junction block could cause the vehicles to short circuit, increasing risk of a fire or the loss of electrical power.

2,124 2014 Ford Escape SUVs. Ford says their panoramic glass roofs have an improperly cured bond that could cause the roofs to leak or separate from the vehicles.

635 2-14 F53 motor home stripped chassis and F59 commercial stripped chassis. The compa-ny says the brake calipers may have been incorrectly made, which could result in a leak and loss in braking performance.

368 2014 Transit Connect vehicles. Ford says their brake reservoir caps in vehicles shipped to Puerto Rico have European labels that don’t conform to U.S. labeling requirements.

197 2014 Ford Fiesta subcompacts. Ford says their fuel tanks may be missing an adhesive layer, which could cause them to leak fuel and increase the risk of fire.

Ford stated that they had identified all of the problems through internal tests as well as warranty claims. Ford will begin notifying owners affected by the five additional recalls this month. For more information pertaining to these recently released recalls and all other recall information, please visit the firm’s website at: www.fordmotor.com.

Inside Fire Page 6

All Power America Recalls Snow Throwers

The United States Consumer Product Safety Com-mission in cooperation with Suzhou Murray Machinery Manufacturing Company, Ltd. Of Jiangsu, China, has vol-untarily issued a recall of the All Power America Single Stage Snow Thrower. Exposure to Chinese gasoline for extended periods of time while testing the product over-seas caused the carburetor needle to become corroded and allow the fuel to leak, posing a fire hazard to consum-ers. Approximately 10,000 units were sold at Menards Stores and independent hardware retailers from Septem-ber 2012 through December 2013 for about $200. The company has received 58 reports of carburetor leaks. No fires or injuries have been reported. This recall involves All Power brand single stage snow throwers. The snow throwers are black and yellow and have a red cap on the gas tank. They have a 20 inch wide snow clearing width and an 87cc, 4 cycle engine. The model number of the recalled snow throwers is SB044P which is printed on a yellow and black sticker located on the top of the unit with the phrase “20 Inch Clearing Width.” Consumers should immediately stop using the snow thrower and contact All-Power to obtain a free repair. For more information, visit the firm’s website at: wwwallpoweramerica.com and click on “Safety Recall.”

The United States Consumer Product Safety Commission in cooperation with Sony Electronics, Inc. of San Diego, California has voluntarily issued a recall of the VAIO Flip personal computers. The computers’ lithium-ion battery can overheat posing fire and burn hazards. Approximately 680 units were sold at Sony retail stores nationwide and at www.store.sony.com from February 2014 through April 2014 for about $800. This recall includes Sony’s VAIO Flip PC laptops

with model number (product name) SVF11N13CXS. The computers were sold in three colors silver, black and pink. They have a Panason-ic-manufactured lithium-ion battery and a folding touch screen that measures about 11.6 inches diagonally and a backlit keyboard. The VAIO logo is etched on the outer top of the computer, near the hinge. The model and serial numbers are printed on a black label with white lettering on the underside of the screen. To locate the

label, consumers should open the computer, move the switch from the lock to the release position and flip the display.

Consumers should immediately stop using the recalled personal computers, shut it down and un-plug it, and contact Sony for instructions on how to arrange for an inspection free of charge to the con-sumer and a free repair or refund of the computer’s purchase price. For more information please visit the firm’s website at: www.sony.com and click on the “Support” tab, then on “Electronics” and then on “Product Support”. Once on the Product Support site, click on “Computers & Tablets, then VAIO Laptops and Desktops and scroll down to Product Alerts.

Sony Recalls VAIO Flip PC Laptops

Inside Fire Page 7

Porter-Cable Fixed-Base Product Routers Recalled

The United States Consumer Product Safety Commission in cooperation with Black & Decker (U.S.), Inc. dba Porter-Cable, of Towson, Maryland, has voluntarily issued a recall of the Fixed-base routers and router bases. The router base handles are not insulated, posing an electrical shock hazard. Approximately 100,000 units were sold in the United States and 7,800 in Canada major industrial equipment suppliers and woodworker supplies nationwide from 1990 to April 2014 for about $85 to $690, depending on the model. No injuries have been reported. Four Porter-Cable 3 1/4 horsepower, electric, fixed-base production routers and one production router base are being recalled. The recalled routers are about 11 inches tall and 7 inches wide. The top of the router motor is black plastic and has the on/off switch for the router. The base is painted gray and has two side handles, an adjuster ring on the top and a clamp screw on the rear. The side handles on the base of recalled routers have no insulation. The Porter-Cable name and logo are on the front of the base. The recalled routers and base were manufactured from 1990 to April 2014. The following router models are being recalled: The router model number and the manufacture date code are on a metal plate on the back of the upper motor housing. The date code consists of the year of manufacture, the week of manufacture and the man-ufacturing plant code in the YYYY WW-XX format.

The router base is model number 75361 and is also sold separately. The model number is located on the side of the base opposite the Porter-Cable label.

Consumed should immediately stop using the recalled routers and router bases, unplug the routers and contact Porter-Cable for a free replacement router base with insulation on the handles. For more infor-mation, please visit the firm’s website at: www.portercable.com and click on “Important Safety Notice/Recalls.”

Model Number Speed/Feature

7518 5-speed

7519 1-speed

7519EC 1-speed/has an extended chuck

22-7519-60 1-speed/ uses 220-volt power source

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